Once again, George Williams (Constitution a dud vehicle, 1 January)
seeks to belittle our constitution. Almost all of the pillars of our
nation came with settlement – the rule of law, the English language,
that State institution above and beyond politics, the Crown, and of
course, our Judeo-Christian culture. The subsequent introduction of
parliamentary democracy was inevitable.

Federation was not. It was only achieved through agreement by the
people on the terms establishing this "indissoluble Federal
Commonwealth under the Crown." The constitution was never intended to
read as a stand-alone course in elementary civics. Of course it has to
be read in the context of its history and law as well as those
conventions which wisdom and experience indicate should remain
unwritten. These for example require the Governor-General to act on the
lawful advice of the Prime Minister. As we know this is subject to the
Governor-General’s higher responsibilities to the constitution - and
thus to the people - the so-called "reserve powers". The constitutional
"crisis" in 1975 was not in the Governor-General’s withdrawal of Mr
Whitlam’s commission. Rather it was the Prime Minister’s refusal to
accept that he could not govern without supply. (Perhaps the most
curious aspect of the 1999 referendum debate was Mr Fraser’s assertion,
put with a straight face, that there would have been no dismissal under
the 1999 republican model. There would have been. But it would have
been the other way around: Mr Whitlam dismissing Sir John Kerr.)

The achievement of federation was extraordinary. As Sir John Quick
and Robert Garran observed, never before had a group of self-governing,
practically independent communities, without external pressure or
foreign complications chosen of their own free well to - come together
as one people - through a deep conviction of national unity.

The constitution divided sovereignty between the Commonwealth and
the States. Only four powers would be exclusively Canberra’s (as the
capital was to be named). Then there was a list available to both, but
where the Commonwealth would prevail. The rest were reserved to the
States. This was to be enforced by the High Court. But after 1920, with
the appointment of avowed centralists, the High Court rewrote the
constitution in Canberra’s favour. As it did subsequently in the
unwarranted expansion of the external affairs power, and the effective
denial of a growth tax to the States. So let us hope the transfer of
the proceeds of the GST will restore the financial autonomy of the
States. As the American Founding Fathers pointed out in the Federalist
Papers: "In a federation, the individual States should possess an
independent and uncontrollable authority to raise their own revenues
for the supply of their own wants."

Notwithstanding past High Courts’ determination to rewrite the
constitution - the present court is more inclined to act with proper
judicial restraint - Mr Williams is unhappy.

He laments the difficulty in amending the constitution, with only
eight out of forty four referenda approved. (One of them, to give the
social services power to Canberra may only have survived because it was
never challenged.) But most of those rejected involved either more
powers for Canberra, or some fiddling for political advantage with the
constitution. Others were ostensibly attractive baits in which similar
proposals were camouflaged.

The point is that the people are far too smart to allow this. They
clearly want a federal Australia. And in a democracy, why should their
will be flouted or castigated?

The Founding Fathers knew how even constitutional plebiscites could
be abused, particularly in France. Instead they chose the Swiss style
constitutional referendum, which requires details of the proposed
change to be known in advance. This guarantees that the people’s true
will can be ascertained.

As Quick and Garran wrote, this requirement is not to prevent or
resist change. It is to prevent change being made in haste or by
stealth, to encourage publish discussion and to delay change until
there is strong evidence that it is "desirable, irresistible and
inevitable".

Few constitutional systems provide such a guarantee. Australia is indeed fortunate to have had such Founders.